Bornventure Munavi Kabbis v Bob Morgan Services Limited (Also referred to as BM Security) [2014] KEELRC 11 (KLR)
The bottom line
#A Kenyan security guard unfairly dismissed for a work accident and a misread instruction won compensation because his employer skipped fair disciplinary procedures.
What this practically means
#Executive summary
#Key legal issues
#Whether disobeying the instruction not to report to work on 8th May 2011 constituted gross misconduct under section 44(4)(e) of the Employment Act
It did not, because the instruction was not clearly and unambiguously communicated; the Claimant's reporting to work demonstrated he did not understand the instruction
The court held that for section 44(4)(e) to apply, instructions must be clear and unambiguous. The Claimant reported back after being called by a colleague, and his supervisor allowed him to work, showing either no communication or unclear communication. Written, explained communication is an employer's duty, reinforced by sections 9(4), 35(3) and 41(1) of the Employment Act.
Whether the 3rd April 2011 vehicle accident amounted to gross misconduct
No; the termination letter characterised it as unsatisfactory performance, which is not a ground for summary dismissal and required a section 41 hearing
The court distinguished between gross misconduct under section 44 and poor performance, holding that the latter is not among the grounds warranting summary dismissal. The Respondent itself described the performance review as finding performance unsatisfactory, shifting the matter to section 41, which requires a proper hearing on performance.
Whether the Claimant was accorded a fair disciplinary hearing
No; there was no documented hearing and the Respondent's witness was not present at any hearing
Apart from the evidence that the Claimant was heard by the human resource manager, the court found no evidence of a proper hearing on the performance or instruction issues. The Respondent's witness was not present at the disciplinary hearing and could not clarify whether it was an investigation or hearing. A disciplinary process must be documented and not treated casually.
Remedies
Six months' gross salary compensation for unfair dismissal plus admitted allowance arrears; reinstatement and severance pay refused
Reinstatement was not pursued in evidence; severance pay under section 40 applies only in redundancy. Notice pay, May 2011 salary and duty allowances were admitted as paid, save for Kshs.647.00 in allowances which was ordered paid. Compensation was assessed at six months' gross salary as at termination on 12th May 2011.
Legal principles established
#- Summary dismissal under section 44 requires a clear and unequivocal breach of the employment contract that cannot be salvaged in any other lawful manner
- Work-related instructions, especially disciplinary instructions affecting employment, must be given clearly, in writing, and explained in a language the employee understands
- Poor or unsatisfactory performance is not a ground for summary dismissal; where performance is at issue, the employer must satisfy section 41 of the Employment Act
- Failure to follow the procedure guaranteed by law before dismissal renders the dismissal procedurally unfair and a nullity
Court orders
#- 1.Declaration that the Claimant was unfairly terminated
- 2.Award of compensation at Kshs.84,816.86 (equivalent to six months gross salary) for unfair dismissal
- 3.Award of the admitted amount of Kshs.647.00 in allowances
- 4.Costs of the suit to the Claimant
- Jurisdiction invoked
- Jurisdiction over employment and labour relations disputes as claimed under the Employment Act; no specific constitutional provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wycliffe Magomere v Sankara Nairobi [2018] KEELRC 2363 (KLR)[2018] KEELRC 2363 (KLR)19 Jan 2018
- Wycliffe Magomere v Sankara Nairobi [2018] KEELRC 2363 (KLR)[2018] KEELRC 2363 (KLR)19 Jan 2018
Cite this brief
#Cite this brief
Caselaw, "Bornventure Munavi Kabbis v Bob Morgan Services Limited (Also referred to as BM Security) [2014] KEELRC 11 (KLR)", Case Analysis (2014). Cause No. 554 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/11/eng@2014-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.